The fight for freelancer rights

On March 4, 2013, veteran freelancer Jay Teitel wrote an open letter to Transcontinental Media, the publishing giant whose titles include Elle Canada, Canadian Living, and Style at Home. He was firm, and maybe even frustrated. But he was honest. “Transcontinental is effectively proposing that I willingly agree to let you steal a portion of my work,” he wrote on The Story Board, an online space for freelance journalists and media workers in Canada. “You have become the guys who want something for nothing.”

Under TC Media’s new contract, introduced in February, freelancers must relinquish all rights to their work, on all platforms and brands TC Media owns now and in the future, without additional compensation. Unlike in the 2009 version of Transcontinental’s agreement, contributors are also stripped of their moral rights, which means the publisher can alter the meaning of the work without a writer’s permission and remove bylines.

Teitel, who has written for Elle Canada and TC Media’s now-defunct More.ca, learned about the new contract from an Elle Canada editor. He says he didn’t read the agreement until Derek Finkle, founder of Canadian Writers Group, approached him asking him to comment on the agreement. When he realized what Transcontinental was asking he thought: “This is a deal killer.”

“Under no circumstances, if it stays the same, would I consider ever working under those conditions,” he says. And he hasn’t. He says the publishing company’s demand for all copyrights violates the “notion of what a freelancer does.”

Transcontinental hasn’t been the only one stirring up controversy with its treatment of freelancers. In February, Toronto Star columnist Ann Douglas left the newspaper after she was presented with an agreement that would allow the paper to reuse commissioned work in its own brand and those of its affiliates and third parties without additional pay.

Star publisher John Cruickshank suggests that such agreements are sparked by the need to protect publications from both legal and financial trouble.

“It begins with multi-million dollar settlements to the class of freelancers,” he says, referring to the Robertson v. Thomson Corp. class action. In 1996, freelancer Heather Robertson filed a lawsuit after The Globe and Mail republished some of her articles that had appeared in the print edition of the paper in electronic databases—Info Globe Online, the Canadian Periodical Index (known as CPI.Q), and a CD-ROM—without her consent. Robertson eventually won an $11-million settlement when the suit was decided in 2006. A similar case happened south of the border, one that was considered a “landmark” suit for freelancer rights. In 1993, Jonathan Tasini and five other freelancers who wrote for newspapers and magazines published by the New York Times Company, Newsday Inc., and Time Inc., filed a suit alleging copyright infringement upon the reuse of their work in three databases without their consent. The U.S. Supreme Court ruled in 2001 that the companies did not obtain permission from the writers to republish their work.

Cruickshank says the additional rights are there to secure the ability to reuse or sell content in the future, so that the company can continue to monetize freelancer content in the digital world.

“There’ve been so many changes in the industry and the way we provide content that it was absolutely necessary that we look at making these changes,” Susan Antonacci, TC Media executive director of brand development, told The Story Board about TC Media’s new contract. She says it’s a “safety net.” Antonacci could not be reached in time for deadline, and TC Media declined to comment further on its new agreement.

Still, there are those who think such reasoning is flawed. Freelance writer and editor Suzanne Bowness, who stopped pitching to TC Media after it changed its freelancer agreement in 2009, and refused to sign the Star Content Studios contract, says it’s a safety net for the companies but not for their contributors. She understands that it’s an economically difficult time for newspapers and magazines, and there is a need to expand rights, especially with the new digital media. But she doesn’t think these companies need all rights, and believes they should ask the writer for permission before republishing.

Michael OReilly, president of the Canadian Freelance Union, agrees. He remembers when writers would produce a piece for a certain publication and only license it to use the piece once; anything more would require the writer’s permission. He doesn’t understand why companies need moral rights, and says writers should be compensated if their work is reused. “The real problem is that publishers, in this case Transcontinental, want all the rights but they don’t want to pay for it,” he says.

CWG’s Finkle doesn’t think companies need to own copyright or have moral rights waived to republish a writer’s work on a different platform. “It’s an empty premise,” he says. He understands there may be some situations under which a writer might benefit from working for exposure, but he says TC Media’s contract is “so egregious, so outrageous, and so disrespectful” that writers should not be working under these conditions. “I don’t think a lot of people get into this business to get rich,” he says, “but when they create something they want to be able to have a certain amount of control.”

But companies are less likely to make changes if there are writers willing to write for free, or for exposure. And there are, says Canadian Media Guild staff representative Keith Maskell. Freelancers, he says, should try to negotiate as much as they can. “Don’t work for exposure because people die of exposure,” he says.

The Story Board reported last week that TC Media may be making changes to the agreement, and releasing a new draft by early summer. For now, some freelancers have been told they can work under the previous contract. Nothing has been finalized, but “the door that appeared closed is now at least slightly open,” Maskell told The Story Board.

Halfway through his open letter, Teitel compares Canadian print journalism to Hollywood, and refers to a joke often used in the movie biz: “Did you hear the one about the really dumb starlet? She fucked the writer.” Meaning, the writer is the last person the starlet should sleep with because he is the “most powerless person in the movie equation”—the director or producer would be better choices. But, he adds, “What the joke doesn’t mention is the truism that without the writer, and the story he or she creates, neither the director nor the producer would have any movie with which to entice the starlet. So maybe in servicing the writer, the starlet wasn’t so dumb after all.” The same seems true here. Publishers say to survive, they need to adapt to the changing media environment. Still, as CFU’s OReilly says, they need freelancers to survive, because without them “they’ll have nobody to produce for their magazines.”